To amend the Indian Gaming Regulatory Act to modify a provision
relating to gaming on land acquired after October 17, 1988.

IN THE SENATE OF THE UNITED STATES

April 8, 2011

Mrs. FEINSTEIN (for herself and Mr. KYL) introduced the following bill;
which was read twice and referred to the Committee on Indian Affairs

A BILL

To amend the Indian Gaming Regulatory Act to modify a provision
relating to gaming on land acquired after October 17, 1988.

Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the `Tribal Gaming Eligibility Act'.

SEC. 2. GAMING ON LAND ACQUIRED AFTER OCTOBER 17, 1988.

Section 20 of the Indian Gaming Regulatory Act (25 U.S.C. 2719) is amended--

(1) by striking the section designation and heading and all that follows
through `(a) Except' and inserting the following:

`SEC. 20. GAMING ON LAND ACQUIRED AFTER OCTOBER 17, 1988.

`(a) In General- Except'; and

(2) in subsection (b)--

(A) in paragraph (1)(B), in the matter preceding clause (i), by
inserting `subject to paragraph (2),' before `lands are taken';

(B) by redesignating paragraphs (2) and (3) as paragraphs (3) and
(4), respectively;

(C) by inserting after paragraph (1) the following:

`(2) APPLICABILITY TO CERTAIN LAND-

`(A) IN GENERAL- Except as provided in subparagraph (D), effective
beginning on the date of enactment of the Tribal Gaming Eligibility
Act, in addition to any other requirements under applicable Federal
law, gaming conducted pursuant to an exception under paragraph (1)(B)
shall not be conducted on land taken into trust after October 17,
1988, by the United States for the benefit of an Indian tribe unless
the Secretary determines, on the date the land is taken into trust,
that the Indian tribe--

`(i) has received a written determination by the Secretary that
the land is eligible to be used for gaming under this section;
and

`(ii) demonstrates--

`(I) in accordance with subparagraph (B), a substantial, direct,
modern connection to the land taken into trust, as of October
17, 1988; and

`(II) in accordance with subparagraph (C), a substantial, direct,
aboriginal connection to the land taken into trust.

`(B) SUBSTANTIAL, DIRECT, MODERN CONNECTION- In making a determination
under subparagraph (A)(ii)(I) that an Indian tribe demonstrates
a substantial, direct, modern connection to land taken into trust
as of October 17, 1988, the Secretary shall certify that--

`(i) if the Indian tribe has a reservation--

`(I) the land is located within a 25-mile radius of the tribal
headquarters or other tribal governmental facilities of the
Indian tribe on the reservation;

`(II) the Indian tribe has demonstrated a temporal connection
to, or routine presence on, the land during the period beginning
on October 17, 1988, and ending on the date of the certification;
and

`(III) the Indian tribe has not been recognized or restored
to Federal recognition status during the 5-year period preceding
the date of the certification; or

`(ii) if the Indian tribe does not have a reservation--

`(I) the land is located within a 25-mile radius of an area
in which a significant number of members of the Indian tribe
reside;

`(II) the Indian tribe has demonstrated a temporal connection
to, or routine presence on, the land during the period beginning
on October 17, 1988, and ending on the date of the certification;
and

`(III)(aa) the land was included in the first-submitted request
of the Indian tribe for newly acquired land since the date on
which the Indian tribe was recognized or restored to Federal
recognition; or

`(bb)(AA) the application to take the land into trust was received
by the Secretary during the 5-year period beginning on the date
on which the Indian tribe was recognized or restored to Federal
recognition; and

`(BB) the Indian tribe is not conducting any gaming activity
on any other land.

`(C) SUBSTANTIAL, DIRECT, ABORIGINAL CONNECTION- In making a determination
under subparagraph (A)(ii)(II) that an Indian tribe demonstrates
a substantial, direct, aboriginal connection to land, the Secretary
shall take into consideration some or all of the following factors:

`(i) The historical presence of the Indian tribe on the land,
including any land to which the Indian tribe was relocated pursuant
to the forcible removal of tribal members from land as a result
of acts of violence, an Act of Congress, a Federal or State administrative
action, or a judicial order.

`(ii) Whether the membership of the tribe can demonstrate lineal
descendent or cultural affiliation, in accordance with section
10.14 of title 43, Code of Federal Regulations (or a successor
regulation).

`(iii) The area in which the unique language of the Indian tribe
has been used.

`(iv) The proximity of the land to culturally significant sites
of the Indian tribe.

`(v) The forcible removal of tribal members from land as a result
of acts of violence, an Act of Congress, a Federal or State administrative
action, or a judicial order.

`(vi) Other factors that demonstrate a temporal presence of the
Indian tribe on the land prior to the first interactions of the
Indian tribe with nonnative individuals, the Federal Government,
or any other sovereign entity.

`(D) EXCEPTIONS-

`(i) IN GENERAL- Subparagraphs (A) through (C) shall not apply--

`(I) to any land on which gaming regulated by this Act will
not take place;

`(II) to any land located within, or contiguous to, the boundaries
of the reservation of an Indian tribe, as of October 17, 1988;

`(III) if--

`(aa) the relevant Indian tribe did not have a reservation
on October 17, 1988; and

`(bb) the land is located--

`(AA) in the State of Oklahoma and within the boundaries of the former
reservation of the Indian tribe, as defined by the Secretary, or contiguous
to other land held in trust or restricted status by the United States
for the Indian tribe in the State of Oklahoma; or

`(BB) in a State other than Oklahoma and within the last recognized
reservation of the Indian tribe in any State in which the Indian tribe
is presently located; or

`(IV) if the relevant Indian tribe has--

`(aa) taken land into trust during the period beginning on
October 17, 1988, and ending on the date of enactment of the Tribal
Gaming Eligibility Act; and

`(bb) has received a written determination by the Secretary
that the land is eligible to be used for gaming under this section.

`(ii) CERTAIN DECISIONS-

`(I) IN GENERAL- Subject to subclause (II), subparagraphs (A)
through (C) shall not apply to a final agency decision issued
before the date of enactment of the Tribal Gaming Eligibility
Act.

`(II) PENDING APPLICATIONS- Subparagraphs (A) through (C) shall
apply to an application that is pending, but for which a final
agency decision has not been made, as of the date of enactment
of the Tribal Gaming Eligibility Act.

`(E) ADMINISTRATION- An action under this paragraph shall be considered
a final administrative action for purposes of subchapter II of chapter
5, and chapter 7, of title 5, United States Code (commonly known
as the `Administrative Procedure Act').'; and